Chappell v Griffin Coal Mining Company Pty Ltd [2016] FCA 1248

Chappell v Griffin Coal Mining Company Pty Ltd [2016] FCA 1248

There was an arguable case that all four persons present, and only those persons, were included in the conversation, so that it was not a conversation which could reasonably have been expected to be overheard by any other person and was arguably a private conversation that should not have been recorded. Given that arguable case, the risk of unsatisfactory consequences if the recording were used before final determination, and the strong balance of convenience favouring preservation of the status quo, the interests of justice required restraint on use of the recording until further order.

Jurisdiction
Australia
Judgment Date
21 October 2016
Procedural Posture
Interlocutory Application for Injunction to Restrain Use of Video Recording / Interlocutory Application
Outcome
Injunctive relief or an undertaking to the Court restraining use of the recording was granted; the existing undertaking was continued until further order, subject to deletion of the words 'or otherwise' in paragraphs (b) and (c).
Legal Topics
['interlocutory Injunction' 'secret Video Recording' 'private Conversation' 'private Activity' 'disciplinary Action' 'adverse Action' 'coercion' 'balance of Convenience']
['evidence' 'industrial Law' 'employment and Industrial Relations' 'surveillance Devices'] ['interlocutory Injunction' 'secret Video Recording' 'private Conversation' 'private Activity' 'disciplinary Action' 'adverse Action' 'coercion' 'balance of Convenience']

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Procedural Posture

Interlocutory Application for Injunction to Restrain Use of Video Recording / Interlocutory Application

Legal Issues

  1. 1 ['Whether there was an arguable case that the recording was taken in breach of the Surveillance Devices Act 1998 (WA).' 'Whether the conversation or activity recorded was private within the meaning of the Surveillance Devices Act 1998 (WA).' 'Whether the balance of convenience and interests of justice favoured restraining use of the recording pending further order.' 'Whether the threatened use of the recording in disciplinary or possible termination action was arguably adverse action under s 340(1) of the Fair Work Act 2009 (Cth), or coercion contrary to s 343 of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

There was an arguable case that all four persons present, and only those persons, were included in the conversation, so that it was not a conversation which could reasonably have been expected to be overheard by any other person and was arguably a private conversation that should not have been recorded. Given that arguable case, the risk of unsatisfactory consequences if the recording were used before final determination, and the strong balance of convenience favouring preservation of the status quo, the interests of justice required restraint on use of the recording until further order.

Court Disposition

Injunctive relief or an undertaking to the Court restraining use of the recording was granted; the existing undertaking was continued until further order, subject to deletion of the words 'or otherwise' in paragraphs (b) and (c).

Orders

  • ["Subject to the deletion of the words 'or otherwise' in (b) and (c), the undertaking of 4 October 2016 continue until further order of the Court." 'If the undertaking is withdrawn, an injunction be granted in similar terms until further order of the Court.' 'Liberty to apply.']